United States District Court, D. New Mexico
DOLORES A. ROMERO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
matter comes before the Court on Plaintiff Dolores A.
Romero's Motion to Reverse and Remand for Payment of
Benefits, or in the Alternative, for Rehearing with
Supporting Memorandum (Doc. 20), filed September 5, 2017.
Pursuant to 28 U.S.C. § 636(b), this matter has been
referred to me for a recommended disposition. Doc. 22. Having
reviewed the parties' submissions, the relevant law, and
the relevant portions of the Administrative Record, the Court
recommends that Ms. Romero's Motion be denied.
Romero appeals the Social Security Administration's
denial of her application for disability insurance benefits
on numerous grounds. Most basically, she asserts that the
administrative law judge (“ALJ”) who denied her
claim failed to weigh the evidence properly and failed to
consider all of her limitations when formulating her residual
functional capacity (“RFC”). Doc. 20 at
1. She also argues that the ALJ failed to comply with the
regulations in finding that she can return to her past
relevant work. Id. However, for the reasons that
follow, the undersigned finds that the ALJ's analysis is
supported by law and substantial evidence. As such, the Court
should affirm the ALJ's findings.
Romero filed an application with the Social Security
Administration for disability insurance benefits under Title
II of the Social Security Act on January 28, 2013, with a
protective filing date of September 6, 2012. AR at
167, 190. She alleged a disability onset date of
November 10, 2011, the day she stopped working, due to severe
central spinal canal stenosis at ¶ 3-L4. AR at
190, 204. Her application was denied initially and upon
reconsideration. AR at 81-104. She requested review
and, after holding a de novo hearing, ALJ Donna
Montano issued an unfavorable decision on September 8, 2015.
AR at 16-33. Ms. Romero requested that the Appeals
Council review the ALJ's decision on September 24, 2015.
AR at 7-15. The Appeals Council denied her request
on February 9, 2017. AR at 1-6. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court has jurisdiction to review the
decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
claimant seeking disability benefits must establish that she
is unable to engage in “any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner
must use a five-step sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
One of the process, the ALJ found that Ms. Romero has not
engaged in substantial gainful activity during the relevant
time period. AR at 21. At Step Two, she determined
that Ms. Romero has the severe impairment of “status
post lumbar spinal canal stenosis status post surgery in 2003
and decompression in November 2012, fibromyalgia, early
osteoarthrosis of the left sacroiliac joint, osteopenia of
the lumbar spine and femoral neck, and chronic pain syndrome.
. . .” AR at 21. At Step Three, the ALJ
concluded that Ms. Romero's impairments, individually and
in combination, did not meet or medically equal the
regulatory “listings.” AR at 24.
claimant does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). “RFC
is not the least an individual can do despite his or
her limitations or restrictions, but the
most.” SSR 96-8p, 1996 WL 374184, at *1;
see 20 C.F.R. § 404.1545(a)(1). In this case,
the ALJ determined that Ms. Romero retains the RFC to
“perform the full range of light work as defined in 20
CFR 404.1567(b).” AR at 24. Employing this RFC
at Step Four, the ALJ determined that Ms. Romero is able to
perform her past relevant work as a gambling cashier, billing
clerk, receptionist, customer service representative, and
private-brank(sic)-exchange service adviser. AR at
28. Accordingly, the ALJ determined that Ms. Romero was not
disabled from her alleged onset date through the date of her
decision, and denied benefits. AR at 29.
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199,
1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area
is grounds for remand. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012). The Court must
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007) (quotation omitted). The Court
reviews only the sufficiency of the evidence, not its weight.
Oldham v. Astrue. 509 F.3d 1254, 1257 (10th Cir.
2007). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion[, ] [and] requires more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084
(quotation omitted). “A decision is not based on
substantial evidence if it is overwhelmed by other evidence
in the record[.]” Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004) (quotation omitted).
Romero raises two main arguments with various associated sub
arguments. First, she contends that the ALJ's RFC finding
is unsupported by substantial evidence and is contrary to
law. Doc. 20 at 12. Specifically, Ms. Romero asserts
that the ALJ committed error by adopting the non-examining
doctors' findings that she is able to perform light work,
by failing to include pain limitations in the RFC, by
rejecting the opinion of her treating physician's
assistant, by relying on improper factors when assessing her
credibility, and by failing to utilize the proper structure
when formulating her RFC. See Id. at 12-21. Second,
Ms. Romero asserts that the ALJ committed legal error at step
four, when she determined that Ms. Romero can perform her
past work. Doc. 20 at 21. Specifically, Ms. Romero
argues that the ALJ erred at step four by failing include all
of her limitations in the RFC, by failing to compare her RFC
and the functions of her past work, and by failing to state
whether she could return to the work as actually performed or
as generally performed in the national economy. Id.
at 21-25. Having carefully reviewed these arguments and
record in this case, the Court concludes that the ALJ's
findings are supported by law and substantial evidence.
The ALJ's RFC finding followed the applicable legal
standards and is supported by substantial
noted above, the ALJ found that Ms. Romero retains the RFC to
perform a full range of light work as defined by the
regulations. In reaching this finding, the ALJ relied on the
findings of nonexamining doctors employed by the Commissioner
and effectively rejected the opinion of Ms. Romero's
treating physician's assistant. The ALJ also discounted
Ms. Romero's allegations of disabling pain. Ms. Romero
argues that some of these findings are contrary to law, and
that they are all contrary to substantial evidence. The
Court, however, disagrees.
The ALJ permissibly adopted the non-examining doctors'
findings that Ms. Romero is capable of light work.
law judges are not required to adopt any prior administrative
medical findings, but they must consider this evidence
according to §§ 404.1520b, 404.1520c, and 404.1527,
as appropriate, because our Federal or State agency medical
or psychological consultants are highly qualified and experts
in Social Security disability evaluation.” 20 C.F.R.
§ 404.1513a. Under 20 C.F.R. § 404.1527(c), an ALJ
must consider the following factors in deciding the weight to
give a medical opinion: (1) the examining relationship; (2)
the treatment relationship; (3) the supportability of the
opinion; (4) the consistency of the opinion with the record
as a whole; (5) the source's specialization in the area
opined to; and (6) “any factors you or others bring to
our attention, or of which we are aware, which tend to
support or contradict the medical opinion.” 20 C.F.R.
the ALJ adopted the non-examining doctors' opinions
because they “are consistent with the mild diagnostic
and clinical findings and the conservative treatment
records.” AR at 28. The ALJ made this finding
after discussing the legal standards, noted above,
AR at 27, and after considering all of the medical
evidence in the record. AR at 24-28. The Court will
not disturb the ALJ's findings in this regard.
Romero, however, posits that the non-examining doctors'
opinions were stale, and were post-dated by 200 pages of
medical records. Doc. 20 at 13-14 (citing Chapo
v. Astrue, 682 F.3d 1285, 1292-93 (10th Cir. 2012)).
While it is true that Chapo cautions that an ALJ
should not rely on a “patently stale opinion”
when formulating a claimant's RFC, id., as the
Commissioner argues, the Tenth Circuit has rejected this
argument where nothing later in the record undermines the
opinions. Doc. 24 at 8 (citing Tarpley v.
Colvin, 601 F. App'x 641, 644 (10th Cir. 2015)). In
Tarpley, the Tenth Circuit affirmed an ALJ's
reliance on a prior opinion even in the face of two more
recent restrictive findings because nothing in the later
medical records cited by the claimant supported the disabling
limitations found by the other doctors or “a material
change in [the claimant's] condition that would render
[the prior opinion] stale.” Id.
course, Ms. Romero attempts to distinguish Tarpley
on the basis that her treating physician's assistant, Mr.
Mamdani, recommended more severe restrictions than did the
non-examining physicians. However, the ALJ effectively
rejected the restrictions Mr. Mamdani opined to and, for the
reasons stated below, the Court finds the ALJ's rejection
of these restrictions to be supported by substantial
Ms. Romero argues that the ALJ's reasons for crediting
the non-examining doctors' opinions were unsupported by
substantial evidence because she does not have “mild
diagnostic and clinical findings” or
“conservative treatment records, ” she has had
two spine surgeries and epidural injections. Doc. 20 at 14
(citing AR at 383). To this point, the Commissioner
responds that Ms. Romero's post-surgery treatment was
conservative, and she improved post-surgery to the point that
she could perform the demands of light work. Doc. 24 at 9.
For the reasons that follow, the Court agrees with the
it is true that spinal surgeries cannot be considered
“conservative” treatment, Ms. Romero's
post-surgery treatment was unquestionably that. Ms. Romero
underwent her second spinal surgery on November 12, 2012,
after failing “conservative management” of her
symptoms. AR at 383. The surgery was performed by
Richard Castillo, M.D., who explained that the major goal of
surgery was to try and help Ms. Romero's leg symptoms and
“may or may not have much effect in her back
discomfort.” AR at 384. Ms. Romero presented
for a post-operative visit on November 27, 2012, at which
time she “state[d] that she is doing better since
surgical intervention” and “experiencing minimal
pain, ” rated at ¶ 3/10. AR at 649. She
was advised to follow up with Dr. Castillo in two months.
AR at 650.
Romero presented for a post-operative appointment on January
10, 2013. AR at 643. She reported pain at ¶
7/10. AR at 643. Dr. Castillo advised Ms. Romero to
continue to work on her home exercise program and she was
advised to follow up in two months. AR at 643. Ms.
Romero was then seen on February 7, 2013, complaining that
she was still having pain despite surgical intervention,
rated at ¶ 9/10. AR at 656. Ms. Romero was
encouraged to continue her postoperative exercise program,
but it was noted that “her prognosis might be
limited.” AR at 656.
meantime, Ms. Romero was treated by Abdul Mamdani, PA-C.
See AR at 673. On March 12, 2013, Ms. Romero
presented for a scheduled appointment complaining of joint
pain and bilateral knee pain lasting four weeks. AR
at 673. Ms. Romero updated Mr. Mamdani about her back surgery
and reported that “she is getting better.”
AR at 673. Mr. Mamdani noted that Ms. Romero was
given narcotic pain medication to start, but was not
currently on any narcotics, “only on
baclofen.” AR at 673. In his findings,
Mr. Mamdani noted that Ms. Romero had a normal gait, normal
heel to toe walk, her knees were negative for varus and
valgus testing,  and that Ms. Romero was “able to
do flexion and extension of the lumbar spine with limited
range of motion due to recent back surgery.”
AR at 674. Mr. Mamdani assessed chronic back and
bilateral knee pain. AR at 674. He told Ms. Romero
to return to the clinic in two to three months, started her
on a trial of Celebrex,  and continued her
Romero was then seen by Dr. Castillo on March 28, 2013.
AR at 645. She reported a pain level of 3/10 as well
as “a great deal of achiness.” Id. She
told Dr. Castillo that she was attending ordered therapy
twice per week, and that her primary care provider had
started her on Celebrex and gabapentin. AR at 645.
Dr. Castillo advised Ms. Romero to continue to work on her
exercise program, noting that he felt that “most of her
symptoms are mechanical. Hopefully the exercise and Celebrex
will be useful for that.” AR at 646. As the
ALJ noted, “[t]here are no subsequent orthopedic
records after this date.” AR at 25.
6, 2013, Ms. Romero presented for a follow-up with Mr.
Mamdani. AR at 669. She complained of joint pain,
bilateral knee pains and popping in her left hip. AR
at 669. Ms. Romero stated that the Celebrex she was given at
her last visit did not help, and she rated her pain at ¶
9/10. AR at 669. Mr. Mamdani noted that Ms. Romero
was “going through a process of disability and that
they recommended that the patient needs to get other
documentation about her joint pain as much as she can so she
can (sic) a good case for a disability.” AR at
669. Despite her complaints, Ms. Romero was not in apparent
distress, her gait was normal, she had a normal heel to toe
walk, her knees were negative for varus and valgus testing,
and she had a full range of motion in her left hip.
AR at 669-670. Mr. Mamdani assessed bilateral knee
pain and left hip pain. AR at 670. He discontinued
Celebrex and started a trial of Mobic,  and advised Ms.
Romero to return to the clinic in 2-3 months. AR at
Romero next presented to Mr. Mamdani on August 26, 2013,
“complaining of joint pain which has gotten worse for
the past 2 weeks” and fatigue. AR at 702.
Prior to the onset of this pain, Ms. Romero reported
exercising daily and participating in water therapy twice a
week. AR at 702. On examination, Mr. Mamdani noted a
normal gait, normal heel to toe walk, negative varus and
valgus testing on her bilateral knees, and “full range
of motion of L spine and C spine.” AR at 703.
Mr. Mamdani assessed joint pain (arthralgia) and fatigue.
AR at 703. He advised Ms. Romero to return to the
clinic in two weeks, discontinued her Mobic, increased her
gabapentin, and started a trial of naproxen. AR
at 703. When Ms. Romero returned on September 9, 2013, she
reported that the naproxen helped with her pain, and Mr.
Mamdani assessed Osteopenia per her Dual-energy X-ray
absorptiometry (DEXA) report. AR at 700-701. Mr.
Mamdani refilled Ms. Romero's naproxen, continued her
gabapentin, started a course of calcium and vitamin D
supplements, and advised Ms. Romero to return to the clinic
in three months. AR at 701.
Romero returned to Mr. Mamdani on April 8, 2014, complaining
of constant back pain, beginning the day prior. AR
at 825. She demonstrated tenderness in the paraspinous
muscles at ¶ 4-L5, S1 area bilaterally. AR at
825. However, on examination she had full range of motion in
her upper and lower extremities, L-spine and C-spine; her
gait was normal, as was her heel to toe walk. AR at
825. Ms. Romero reported that she had discontinued her
baclofen, which was reordered, and she was started on a trial
of Voltaren topical. She also “was advised to continue
to do stretching exercises as she mentioned that she has been
doing them. Also, she is doing water therapy. We will go
ahead and advise patient to continue to do that.”
AR at 826. Ms. Romero was told to return to the
clinic as needed. AR at 826.
there is nothing in Ms. Romero's post-surgery treatment
records that undermines the opinions of the state-agency
doctors who determined that Plaintiff is able to perform the
requirements of light work. Rather, her post-surgery records
show a general improvement in her symptoms to the point where
she consistently demonstrated a normal gait, normal heel to
toe walk, and a full range of motion in her spine. As such,
the Court will not reverse the ALJ for relying on the
opinions of the non-examining doctors.
The ALJ reasonably discounted Ms. Romero's complaints of
pain, and was not required to include unsupported pain
limitations in the RFC.
various cases and administrative rulings, Ms. Romero posits
that because she has been diagnosed with stenosis,
degenerative disc disease and fibromyalgia, all of which are
consistent with persistent complaints of pain, the ALJ erred
in failing to include pain limitations in the RFC. Doc. 20 at
14. The Commissioner responds that the ALJ reasonably found
Ms. Romero's claims of disabling limitations to be
unsupported by the record, Doc. 24 at 10, and that
diagnosis of a condition does not alone establish that it is
disabling. Doc. 24 at 11 n.3 (citing Bernal v.
Bowen, 851 F.2d 297, 301 (10th Cir. 1998)). The Court
agrees with the Commissioner.
Court begins with the proposition that “an
individual's statements of symptoms alone are not enough
to establish the existence of a physical or mental impairment
or disability.” SSR 16-3P, 2017 WL 5180304, *2.
Additionally, “subjective symptom evaluation, ”
formerly known as “[c]redibility[, ]
determinations are peculiarly the province of the finder of
fact and will not be overturned when supported by substantial
evidence.” Watts, 2017 WL 4862424, at *3
(quoting Wilson v. Astrue, 602 F.3d 1136, 1144 (10th
Cir. 2010)). Still, under Luna v. Bowen, 834 F.2d
161 (10th Cir. 1987), and its progeny,
the ALJ must consider and determine: (1) whether the claimant
established a pain-producing impairment by objective medical
evidence; (2) if so, whether the impairment is reasonably
expected to produce some pain of the sort alleged (what we
term a “loose nexus”); and (3) if so, whether,
considering all the evidence, both objective and subjective,
the claimant's pain was in fact disabling.
Brownrigg v. Berryhill, 688 F. App'x 542, 545
(10th Cir. April 19, 2017) (quoting Keyes-Zachary,
695 F.3d at 1166-67). An ALJ is not required to cite to
Luna if he states its paradigm. Razo v.
Colvin, 663 F. App'x 710, 717 (10th Cir. 2016).
Factors under the regulations relevant to the determination
of whether a claimant's pain is in fact disabling
(i) Your daily activities; (ii) The location, duration,
frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors; (iv) The type,
dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have
received for relief of your pain or other symptoms; (vi) Any
measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to
20 minutes every hour, sleeping on a board, etc.); and (vii)
Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3); SSR 16-3P, 2017 WL 5180304,
*7-8; see Watts, 2017 WL 4862424, at *3. Findings as
to a claimant's subjective pain “should be closely
and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings. . . . But we do not
require a formalistic factor-by-factor recitation of the
evidence.” Watts, 2017 WL 4862424, at *3
(citing Kepler v. Chater, 68 F.3d 387, 391 (10th
Cir. 1995); Qualls v. Apfel, 206 F.3d 1368, 1371
(10th Cir. 2000)). To the contrary, an ALJ need only discuss
those factors that are “relevant to the case.”
SSR 16-3P, 2017 WL 5180304, *8.
cannot always be measured objectively through clinical or
laboratory diagnostic techniques. However, objective medical
evidence is a useful indicator to help make reasonable
conclusions about the intensity and persistence of symptoms,
including the effects those symptoms may have on the ability
to perform work-related activities[.]” SSR 16-3P, 2017
WL 5180304, *5. That said, “we will not disregard an
individual's statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective
medical evidence does not substantiate the degree of
impairment-related symptoms alleged by the individual.”
Id. Rather, “if we cannot make a disability
determination or decision that is fully favorable based
solely on objective medical evidence, then we carefully
consider other evidence in the record in reaching a
conclusion about the intensity, persistence, and limiting
effects of an individual's symptoms.” Id.
If an individual's statements about the intensity,
persistence, and limiting effects of symptoms are consistent
with the objective medical evidence and the other evidence of
record, we will determine that the individual's symptoms
are more likely to reduce his or her capacities to perform
work-related activities. . . . In contrast, if an
individual's statements about the intensity, persistence,
and limiting effects of symptoms are inconsistent with the
objective medical evidence and the other evidence, we will
determine that the individual's symptoms are less likely
to reduce his or her capacities to perform work-related
activities. . . .
Id. at *8. With these standards in mind, the Court
turns to the specific arguments Ms. Romero raises in ...